In Illig-Renn, we held that ORS 162.247(1)(b) survived a vagueness
challenge under the state and federal constitutions because the statute was not
unconstitutionally vague in all of its conceivable applications. 189 Or App at 50-51. In
reaching that conclusion, we relied on Ausmus, 178 Or App 321, State v. Chakerian, 325
Or 370, 381, 938 P2d 756 (1997), and State v. Compton, 333 Or 274, 280, 39 P3d 833,
cert den, 537 US 841 (2002). The Supreme Court in Ausmus did not deal with vagueness.
We therefore presume that the Supreme Court vacated our decision based on our
overbreadth analysis.

That analysis flowed from the premise that a statute is unconstitutionally
overbroad if it prohibits a significant amount of constitutionally protected conduct or
speech and it is not susceptible to a narrowing construction that would conform to
legislative intent. State v. Robertson, 293 Or 402, 410, 649 P2d 569 (1982); Ausmus, 336
Or at 504-05. Beginning from that precept, our overbreadth analysis in Illig-Renn
consisted entirely of the following quotation from our opinion in Ausmus:

"An order to disperse that violates a person's constitutional rights--for example, the rights of freedom of expression or freedom of assembly
guaranteed by Article I, sections 8 and 26 of the Oregon Constitution,
respectively--is not a 'lawful' order. [The statute] prohibits refusal to
comply only with a 'lawful' order. We conclude that, on its face, the statute
is not constitutionally overbroad."

The Supreme Court, beginning from the same premises, reached a different
conclusion in Ausmus. It noted that the disorderly conduct statute "proscribes
[constitutionally protected] conduct * * * that occurs after the order to disperse and that
may be separate and apart from the [constitutionally unprotected] conduct that might have
given rise to the order to disperse." Ausmus, 336 Or at 506. For example, a person may
have congregated with a group of other persons for the purpose of peaceably listening to a
political speech. Indeed, the lawful purpose of such an assembly may be to inflict alarm
on government leaders by demonstrating to them widespread displeasure with their
policies. While congregating for that purpose, a person might engage in constitutionally
unprotected conduct such as fighting. An order to disperse in such a situation would be
lawful, but

"an individual may respond to an order to disperse, simply by ceasing the
behavior that gave rise to the order to disperse, while continuing to
congregate peaceably with others[.]

"* * * * *

"The difficulty with ORS 166.025(1)(e) is that * * * the statute
applies to an individual who, in response to an order to disperse, abandons
whatever activity in which they [sic] were engaged that made the order
lawful in the first place, but continues peaceably to congregate with others,
with the intent to cause public inconvenience, annoyance, or alarm or
recklessly creates the risk of causing public inconvenience, annoyance or
alarm. And, because ORS 166.025(1)(e) reaches that conduct, the
legislature has stepped beyond the permissible regulation of damaging
conduct or the harmful effects that may result from assembly or speech."

2. Article I, section 8, of the Oregon Constitution guarantees the right to "expression
of opinion" and to "speak, write or print freely on any subject whatever * * *"; Article I, section
26, guarantees the right to "assembl[e] together in a peaceable manner to consult for their
common good * * *."

3. The exception might be situations in which the person who fails to disperse under
the disorderly conduct statute does not know that the person issuing the order is a police officer.
We need not and do not decide whether, in those circumstances, the statute could lawfully be
applied.